Is Privacy Dead?

When you download an app, most of them seek access to your phone data, pictures, contacts lists and what not. Phone cameras have made everyone in the world paparazzi. And often Google and Facebook know more about your life than you probably remember. This would all be very frightening if we weren't secured by a right to privacy. It's true that such a right is not explicitly provided for in the Indian constitution. But, the Supreme Court has often read it as part of our fundamental rights. What happens though when the government says you have no right to privacy? Aayush Ailawadi finds out…

In the year 1947, when the constituent assembly drafted the Indian constitution, it deliberated over including the right to privacy as one of our fundamental rights.

Dr Ambedkar suggested that the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated and no warrants shall issue but upon probable cause. However the provision was dropped on fears that as AK Ayyar put it, such a clause will lead to endless complications and difficulties in the administration of justice. Hence, the Indian constitution does not grant its citizens an explicit right to privacy.

Menaka GuruswamyAdvocate, Supreme Court

“I guess the question really is, what is a fundamental right? Is it kind of basic constitutional entitlements that citizens of this country are privy to and if that is the case even though they are very specific textually, there are very specific fundamental rights and the right to privacy those words are not mentioned in the text of the constitution. However those words I believe are implicit in article 21 of the constitution which speaks about personal liberty and the right to life. So, given that I do believe that the constitution protects a right to privacy because it is inherently part of my personal liberty.”

It was in 1975, in the case of Gobind vs state of Madhya Pradesh that the Supreme Court held that the right the privacy was implicit in the fundamental right to life and liberty, guaranteed under article 21 of the Indian constitution. The Supreme Court confirmed that position in the Auto Shankar case of 1994 and the PUCL case of 1996 but the government says that in two other cases both determined by larger benches the Supreme Court held that there is no right to privacy.

Karuna NundyAdvocate, Supreme Court

“Privacy is a fundamental right under the Indian constitution. The Supreme Court has found so and affirmed it via a 7 judge bench in 1978 in Menaka Gandhi's case. So, that is absolutely there. Pursuant to that there are already rules that exist on data protection - the IT rules of 2011. There are various judgements all over the country that follow that principle and articulate that right in various different ways. But, absolutely, we need a legislation that actually protects privacy.”

Rahul MatthanPartner, TrilegalAssisted Government On Privacy Law

“In the US it is an old constitution and so there is a fundamental right to privacy. In Europe there is no specific fundamental right to privacy though the Europeans are of the firm belief that each person has a fundamental right to privacy in Europe. Instead what they have is a very detailed regulation or a series of regulations that govern privacy in Europe, that makes privacy and the breach of privacy in Europe punishable to a much greater extent.”

Apart from the abundant Indian and foreign case law establishing the right to privacy, even article 12 of the Universal Declaration of Human Rights says that no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence nor to attacks upon his honour and reputation. Article 17 of the International Covenant of Civil and Political Rights to which India is a party confers this same right to privacy. Yet, when arguing in favour for unique identification or Aadhaar the Attorney General of India, Mukul Rohatgi, insisted that Indians do not have a fundamental right to privacy. Imagine then an India where privacy is dead!

For the critics of Aadhaar, it would be their worst nightmare come true. It is the world's largest national identification number project using biometrics in order to give every Indian non-repudable identity. However how this data is stored, shared, utilised and protected has been the concern of many activists including Supreme Court lawyer Usha Ramanathan.

“For one thing this is about data as property because if you notice the 2009 notification which setup the UIDAI, you will find that it says that the UIDAI will own the database. You think about what it means. It means that the national population register when it is being made, the Registrar General of India is handing over our data to an agency which wants to own that data. Don't forget that the UIDAI's own document says that it is thinking of a resource generating model. It intends to make profit on this data. So, they say on just authentication of 10 kinds of services, when it reaches steady state they will make about Rs 280.3 crore. So, this is about money making using our data! If we are able to ascribe innocence to profit making on our data, I would be surprised if people are able to find that.”

Rahul MatthanPartner, TrilegalAssisted Government On Privacy Law

“The real risk of running Aadhaar in today’s context, absent a privacy law is that the level of non-repudiabilty that Aadhaar gives to your identity given that it is ten finger and an iris that they are using to identify you will ensure that the level of accuracy of whatever Know your customer (KYC requirements that any statute imposes will be met to a very high degree and so you will find that all services that are mandated to employ KYC will start moving from the current types of KYC they adopt to adopting Aadhaar.

When Aadhaar becomes ubiquitous in the same manner as a social security number in the US currently is ubiquitous, there can be a risk that if the Aadhaar details are leaked or if the Aadhaar details get into the hands of people who want to misuse it, there could be some severe repercussions to personal privacy.”

Imagine An India Where Privacy Is Dead…

That was a reality for over 40 couples in Mumbai last week as under the pretext of maintaining law and order, the Mumbai police raided hotel rooms, dragged couples out and charged them with indecent behaviour in public.

Menaka GuruswamyAdvocate, Supreme Court

“Maharashtra has traditionally been one of our most liberal states. Bombay is the epitome of cosmopolitan India. For the police to go from hotel room to hotel room where there is presumably consensual activity underway is deeply unacceptable, this kind of moral policing and therefore I distinguished the legitimate police power of the state national security- are you saying that if two people in the privacy of a hotel room are conversing with each other, are having a relationship that is consensual, this somehow affects national security? Really, is this the society we would like to become?”

“These are normative problems which citizens should be able to deal with which you can’t do –these hotels for instance, if they had to take down the unique identification (UID) number when you walk in and report to the nearest police station, can you imagine what the consequences of that will be?

We know that in Delhi for instance, every marriage has to have a UID number attached to it or you can’t register your marriage. So, the police will be checking out is this person with their husband or wife or somebody else and who is that somebody else, I really want to know whose business it is?”

Imagine An India Where Privacy Is Dead…

Not even the rich and famous are spared then. In 2010 Ratan Tata approached the Supreme Court to protect his fundamental right to privacy. Mr. Tata’s conversations with the group’s communications consultant Niira Radia were recorded when her phones were tapped in a money laundering investigation. The recordings leaked from the tax department made their way to the media and out Ratan Tata under the spotlight as well. The leak points to inadequate government protection, the publication of the conversations raises issues of public and private interest.

Menaka GuruswamyAdvocate, Supreme Court

“If you are going to get a tap and you are going to use the contents of my conversation rightly so for an ongoing investigation, maybe that investigation is tax evasion and I believe that such investigations are incredibly important, if actually a well established tax evasion. But if you are going to use that conversation merely for a kind of a salacious leak of a person’s private life, then that is not acceptable and that is not constitutional either because again it takes us back to the conversation of Sharma which the Supreme Court has, of Kharak Singh, you must, if the police powers of the state are going to be exercised to infringe personal liberty, then they must be used for a legitimate police function.”

Imagine An India Where Privacy Is Dead…

The human DNA profiling bill would create an Orwellian state. It gives the government wide powers to collect forensic data including DNA not just from those convicted of crimes but also those accused as well as ordinary citizens. The DNA database could be used for a number of things apart from just criminal proceedings such as to identify victims of accidents or parental disputes, population statistics, identification research and migration.The bill doesn’t even specify when consent for collecting DNA samples is necessary.

“They have categorically said that they will have a crime scene index and an offender’s index. They have also got in their definition something called a suspects index. Then they also have unidentified dead bodies, missing persons index, volunteers index and any other index that may be added by regulation. Who makes the regulation? It is made by a deoxyribonucleic acid (DNA) board and the board has a specific authority from an autonomous institution the Centre for DNA Fingerprinting and Diagnostics (CDFD). The Director of the CDFD will always be the Secretary of the board. Then you have all these indices- you have the offenders’ index, you have the volunteers’ index, you have all these, they are all going to be placed in a DNA bank and that bank is going to be operated just like you operate any other bank where all the monies go in maybe in different forms but then they become money when they get in there. So, it will be used across the board.”

Menaka GuruswamyAdvocate, Supreme Court

“The state has left for itself the power to define who it shall take DNA from. My question really is what if the state wants to just take a political dissident’s DNA? Someone who dissents, someone like you or me or anyone?”

“So, allowing them to make the regulations, be the people who are handling the material, controlling the data managers, deciding what kind of indices need to be created, who needs to give it, how do they keep it, how do they manages that data, who it can be handed over to, all that is going to be decided outside the law. It is not being decided by the law makers, it is being handed over to a board to decide.”

In a world of invasive technology and DNA profiling, in a world of Edward Snowden’s and Homeland Security, in a world where the US is accused of tapping German Chancellor Angela Merkel’s phone and the government is monitoring your facebook account, the right to privacy cannot just be an implicit right. Experts say it is time for a clear legislation.

Rahul MatthanPartner, TrilegalAssisted Government On Privacy Law

“What I would really prefer is to have a single national privacy legislation and for us to write that privacy legislation in a manner that requires all other laws to comply with those parameters and the reason I say this is because we need as a nation to have certain guiding principles with regard to how our privacy is to be ensured. Once we have those guiding principles, that need to apply to all walks of life.”

Since the government insists that Indians don’t have a right to privacy, it is all up to Supreme Court now.